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Machaya asserted that Reconstruction Act was constitutional in 2018, is he correct?



In November 2018, Mr. Prince Machaya asserted boldly that a law that divests and deprives shareholders and directors of the control and management of a private company was Constitutional.

He stated as follows to the Parliamentary Committee on Mines that was chaired by Hon. Themba Mliswa as follows:

Source: https://news.pindula.co.zw/2018/11/20/parliament-has-no-power-to-probe-hwange-colliery-company-attorney-general/

Below we have a Q&A with Mr. Tinashe Mpasiri, Director of Corporate Literacy at the Justice Under Rule of Law Institute, an initiative jointly powered by the 1873FM radio and the Banking on Africa’s Future Initiative:

Q: Mr. Mpasiri what is the state?

A: It is ironic that Mr. Machaya, the Attorney General (AG) knows and ought to know that in relation to the Reconstruction of State-Indebted Insolvent Companies Act (Recon Act), the word STATE is not defined.

If this is accepted as true and fact, the question that inevitably follows is how can one be indebted to a nullity?

Notwithstanding, the AG who evidently lives on another planet asserts that it can be a legal possibility that a company can be indebted to this self-created creditor called the state.

Just to demonstrate the absurdity implied in the AG’s assertion that: “In the case of companies which are put under reconstruction, the fact that they are indebted to the State does not necessarily make them Government agencies,” the constitution in terms of s69(2) that provides as set out below precludes a creditor in the name of the state from assuming a superior creditor status in relation to a debtor in terms of the doctrine of equality:

“In the determination of civil rights and obligations, every person has a right to a
fair, speedy, and public hearing within a reasonable time before an independent
and impartial court, tribunal, or other forum established by law.”

Consequently, no law can pass the constitutional muster that is based on a principle that makes the state a judge, jury, and executioner in relation to civil rights and obligations.

The AG has a constitutional duty in terms of s114(4)(d) of the Constitution of Zimbabwe: “to promote, protect and uphold the rule of law and to defend the public interest;” and his conduct and attitude in relation to the constitutional validity confirm he not cognizant on the limitations imposed upon him by the constitution.

Q: What is your take on the statement by AG that: “Parliament cannot exercise its powers over a company like Hwange, any power that it would not otherwise have if it is not under an order of reconstruction because it is a privately-controlled company?”

A: Indeed, no company is contemplated and permitted to exist that is defined as state-indebted because the indebtedness of a company does not define its identity. This is like classifying a pregnant woman into another human class. A woman belongs to a universal class of humans and as such should be incapable of belonging to any special class solely on account of pregnancy.

A company is a company by any description and, therefore, the Recon Act creates no company and as such a company under reconstruction is no company at all but is analogous to a company whose control and management are hijacked by an act of state.

This can only happen in a country that does not respect the rule of law.

It is chilling that an AG, an oath-taking public office bearer can surrender to a civilization in which the so-called state can acquire the rights and freedoms of a creditor when it enjoys no standing to be a creditor.

What is astonishing is that this offensive and morally bankrupt Act is administered by the Minister of Justice, Legal, and Parliamentary Affairs who possesses no jurisdictional facts to determine if a private company is indebted or not?

On what legal and constitutional basis would this public office bearer acquire the facts to enable him to determine that a private company is indebted to the so-called state on the one hand and conclude in his mind that the said company is insolvent without the purported debtors being constructively involved in the enterprise of hijacking?

Q: The AG asserted that the company so hijacked using this law as a weapon: “has got shareholders and other people,” what is your take on this statement?

A: The mere fact that the hijacked company has its own shareholders and officials makes it unconstitutional for public power to be used to divest and deprive them of the control and management of their company without following the due process of the law.

Q: The AG further stated: “If there was no order of reconstruction, Parliament cannot play its oversight over Hwange,” what do you make of this statement?

A: The AG is saying because the hijacking of a company does not involve any public funds, the Parliament has no jurisdiction over the creature. This is tantamount to saying that the loot obtained from the use of public power does not legally belong to the government but to the looters.

Q: The AG stated: “The order of reconstruction itself does not make Hwange an institution of Government,” what is your take on this?

A: The whole enterprise of reconstruction is to permit crooked public office bearers to use the government and its coercive power to expropriate private assets without necessarily creating any accountability in the process. In other words, the Administrator, a creature of statute assumes the control and management of the confiscated assets without suffering the statutory burden of reporting to any organ of state other than the Minister who issued the extra judiciary order in relation to a private company whose effect is to create a facade of a company without the properties of a company. The Administrator is not accountable to Parliament yet the basis of placing the company under reconstruction is that the hijacked company is indebted to the fiscus.

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Your Excellency and Dear Brother, President Dr Hage Geingob, Honourable Ministers, High Commissioners, Senior Officials, Ladies and Gentlemen, Good Morning. Allow me to begin by thanking you, Your Excellency, for honouring our invitation.

Too many years have passed since the last state visit to South Africa by the Republic of Namibia in November 2012.

A great many things have changed our world since then, including the global COVID-19 pandemic that wreaked havoc across the globe.

The pandemic had a devastating impact on human health, livelihoods and economic activity, and it will take us some time to fully recover. Therefore, as we further cement our strong bilateral relations, we need to work together for a swift economic and social recovery for our respective countries, for the region and for our continent.

It is gratifying that officials from our two countries continue to engage at various levels. The most recent structured engagement was the Senior Officials Meeting of the 3rd South Africa-Namibia Bi-National Commission that took place in Windhoek in March this year.

I am pleased with the work that has been done in preparation for the upcoming BNC, which is scheduled to take place in Namibia later this year.

Yesterday, Namibia’s Minister in the Presidency and South Africa’s Minister of International Relations and Cooperation had the opportunity to discuss issues of mutual interest. This engagement will be valuable for our discussions today.

As we sign new Agreements and Memoranda of Understanding during this visit, it is important that we conduct an audit of all existing legal instruments between our two countries in preparation for the upcoming BNC.

We need to be certain that they are fit-for-purpose and that they continue to serve our respective developmental goals.

As neighbours with deep historical ties, we share the same aspirations for our people – development, employment, equality and prosperity. We are therefore committed to deepen our cooperation, particularly in the area of trade and investment.

It is unfortunate that, due to other events taking place this week, we were not able to convene a Business Forum on the sidelines of this State Visit. However, we are determined that a South Africa-Namibia Business Forum should take place this year.

It is an opportunity to bring our respective private sectors together to promote investment, trade and potential new areas for cooperation.

Namibia is one of South Africa’s top trading partners in the Southern African Customs Union (SACU) and the Southern Africa Development Community (SADC).

We must use our geographic proximity and the close ties between our respective economies for greater mutual benefit. One of the areas to expand cooperation is in energy investment. For example, how do we leverage the growing demand for new, clean technologies like green hydrogen to promote cross-border development?

Both our countries are planning massive hydrogen projects. Such projects are key to the energy security of South Africa and Namibia, and will catalyse economic growth and job creation in both our countries.

We need to look at how we collaborate, as our respective governments, state-owned enterprises and private companies, to seize this great opportunity.

Our shared history enjoins us to pursue a common future. It is imperative that we implement the African Continental Free Trade Area to deepen African economic integration, to develop our economies and to lessen our reliance on imports from outside Africa.

South Africa pledges to continue to work closely with Namibia as current chair of the SADC Organ on Politics, Defence and Security Cooperation to promote regional peace and stability.

Please be assured of our full support during your tenure, including with respect to regional anti-terrorism initiatives in northern Mozambique.

As we strive for peace and stability in our region, we must continue to support the struggle for self-determination and freedom of the Saharawi people.

The declaration and commitments of the SADC Solidarity Conference with Western Sahara, co-hosted by South Africa and Namibia in March 2019, should be fully implemented.

Similarly, all United Nations and African Union resolutions and decisions should be enforced. We must continue to mobilise regional, continental and international support for a sustainable resolution to the Western Sahara issue, and push for the Kingdom of Morocco and the Polisario Front to resume dialogue without preconditions.

At the same time, we should reaffirm our support for the Palestinian cause and for the two-state solution.

The conflict between Russia and Ukraine has exposed the frailties of international systems of governance. South Africa, like Namibia, maintains that the United Nations and the office of the Secretary-General should play an active role in resolving this conflict.

We also agree that the UN in its current configuration needs to be more responsive to the needs and aspirations of the majority of the world’s people. We must step up our efforts to change the design of multilateral systems of governance.

One of the most pressing issues facing our respective countries and our region is climate change. L Like Namibia, South Africa is a water-scare country and is thus particularly vulnerable to climate change and its effects on food security, energy generation, and many other sectors.

We need to work together in pursuit of low-carbon, inclusive, climate resilient development, which is critical to the sustainability of our continent.

Your Excellency, I look forward to our deliberations on these and other important matters of mutual interest.

I thank you again for honouring our invitation and warmly welcome you and your delegation to South Africa.

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President Cyril Ramaphosa will host His Excellency President Sauli Väinämö Niinistö of the Republic of Finland on a State Visit to the Republic of South Africa.

President of Finland will undertake a State Visit to the republic, from 24 to 26 April 2023, at the invitation of President Ramaphosa. Initially the visit was planned in April 2020, but was postponed due to the Covid-19 pandemic.

The State Visit will be the first by a Finnish President to South Africa in more than twenty years. President Niinistö, however, visited South Africa in December 2013 to attend the funeral of former President Nelson Mandela.

Bilateral relations between Finland and South Africa are deep rooted due to Finnish support for the liberation movements in Southern Africa. Relations have grown since 1994 in all areas of bilateral engagement and Finnish investment is a major priority for both countries, with over R2 billion in new investments in the last 3 years.

President Niinistö will be accompanied by a delegation of Finnish business leaders and a Business RoundTable will be hosted in partnership with the Department of Trade, Industry and Cooperation held under the theme Building Smart, Secure, Sustainable Society Together.

The objective of the session is to strengthen trade and investment relations between South Africa and Finland through the mobilisation and facilitation of new investments, expansion and nurturing of existing Finnish investments in South Africa, as well as exploring opportunities for joint ventures in technology commercialisation in mutual sectors.

Most of the discussions will centre on possible opportunities in renewable energy; Information and Communication Technology; mining technology; packaging and food hygiene, construction and finance, that the South African and Finnish companies can work together in exploring.

The Presidential Round Table will be preceded by a Business-to-Business Matchmaking engagement between the South Africa and Finnish companies. The outcome of the two interactions is expected to be an increase in trade and investment between South Africa and Finland.

Finland is an important partner to South Africa and, despite its small population and territory; it is amongst the most developed countries in the world and provides valuable trade, investment and development cooperation to South Africa. Like the other Nordics, they play an active role in global affairs, are strong advocates for multilateralism, have an excellent capacity and track record for peace and mediation efforts, and are global leaders in innovation.

Since 2010 Finland has been supportive of South Africa’s national priorities and continues to be a reliable partner in various sectors including maritime, science and technology, ICT and digitalization, environment, energy, education, skills development, agriculture and water.

President Niinistö will also be conducting a State Visit to Namibia during his Southern Africa visit. Within the SADC context, the Finnish have supported several programmes on sustainable water management. The Finnish engagement with Africa forms part of its strategic objective of increasing partnerships with Africa, including expanding its diplomatic presence, its support for the African Agenda and expanding economic relations. In this regard, Finland has adopted an Africa Strategy.

Finland is also a strong international partner in areas of various global issues such as strengthening multilateralism, international law, peacebuilding and mediation, the advancement of gender and human rights as well as around issues of renewable energy.  

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President Cyril Ramaphosa will host His Excellency President Hage Geingob of the Republic of Namibia who will undertake a State Visit to the Republic of South Africa on Thursday, 20 April 2023. 

The visit aims to solidify bilateral relations between the two countries and it is expected that President Ramaphosa and President Geingob will discuss political and economic issues including regional, continental and international matters of mutual concern, including exchanging views on the political situation in Eswatini, conflict in Saharawi Arab Democratic Republic (SADR), Palestine and the Russia – Ukraine situation. 

South Africa and Namibia enjoy close historic relations and the structural bilateral relations between the two countries is conducted under the framework of a Bi-National Commission (BNC) inaugurated in 2013.

The State Visit by President Geingob will afford the two countries an opportunity to solidify their bonds of friendship through assessing progress made in the implementation of the decisions of their BNC. 

The visit will also afford the two countries an opportunity to enhance economic cooperation; explore trade and investment; and identify new areas of cooperation. 

In 2022, South Africa imported R16.1 billion from Namibia and in turn South Africa exported R56.5 billion to Namibia. 

The second session of the South Africa-Namibia BNC was held in South Africa in October of 2016. The third session is scheduled to be hosted by Namibia and meetings, at senior officials level, are underway planning for this meeting. 

The State Visit will be preceded by a bilateral meeting between the Minister of International Relations and Cooperation (DIRCO) of South Africa, Dr Naledi Pandor and Ms Netumbo Nandi-Ndaitwah, Minister of International Relations and Cooperation of the Republic of Namibia on 19 April 2023.

Namibia is a member of the Southern African Customs Union (SACU) and President Geingob Chairs the Southern African Development Community (SADC) Organ on Politics, Defense and Security Cooperation.

The last State Visit to the Republic of South Africa by the Republic of Namibia took place in November of 2012, by former President Hifikepunye Pohamba. 

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